By Justin Fenton and Justin George, The Baltimore Sun
5:00 AM EDT, September 6, 2013
Nelson Bernard Clifford has been tried in three separate rape cases in recent years. Each time, he was linked through DNA to the scene and his accuser said she had been bound, blindfolded and attacked.
And each time, the 35-year-old was acquitted after giving similar testimony: He said the sex was consensual and surmised the women accused him of rape because they were either upset over a financial dispute or worried their boyfriends would find out.
With a fourth case, an attempted rape, headed to trial next month, Clifford and his acquittals have become political fodder for State's Attorney Gregg Bernstein's opponents who have criticized his effectiveness.
The case also highlights the difficulty of prosecuting sex crimes, particularly in cases where a defendant faces separate trials on similar charges. While defense attorneys say multiple trials ensure juries aren't unfairly swayed by unrelated allegations, prosecutors contend that cases should be heard together if they show a common "modus operandi."
Last month, prosecutors dropped three rape charges against another defendant after failing to convince a judge to try the cases jointly.
Marilyn Mosby, a candidate for state's attorney, called the acquittals of Clifford, a convicted sex offender from a previous case, "totally unacceptable." Bernstein this week acknowledged prosecutors were concerned with the verdicts, calling Clifford a "dangerous individual" and saying he still hopes to convict him.
"Mr. Clifford has testified that the sexual contact was consensual, and the jury accepted his version of what occurred," Bernstein told radio host Marc Steiner this week. "All I can say is we have tried extremely hard to successfully prosecute him and we're hopeful we'll be successful in the next case."
Clifford's defense attorney, Gregory Fischer said in court that the accusers gave inconsistent accounts. Clifford, who remains in jail, provided detailed accounts on the stand of meeting the women, getting in touch by phone, going to their houses and having consensual sex. Fischer could not be reached for comment.
The jury foreman in one of the cases said prosecutors simply didn't have enough evidence to overcome their doubts about the testimony of a visibly shaken victim.
"We don't really know her that well; [whether] she's nervous in court because of another reason, besides rape," said the foreman, a 28-year-old who did not want to be identified. "We don't know."
Mosby, who plans to challenge Bernstein in next year's election, said in an e-mail blast to supporters that the blame rests with Bernstein. He "lost three times in jury trials," she said, adding that "rapists, murderers, stick-up kids — none of them are scared of Baltimore prosecutors."
Russell A. Neverdon Sr., a defense attorney who also plans to challenge Bernstein, questioned the wisdom of the prosecution strategy in Clifford's case.
He said prosecutors should thoroughly investigate each allegation separately. Seeking to join cases suggests "that you don't believe in your case," and can be a high-risk strategy because a problem with one of the cases could sink the entire prosecution.
"It can blow up in your face," Neverdon said.
Clifford has been a registered sex offender since 1997, when he was sentenced to 10 years in prison for a second-degree sex offense.
Charged with rape in 2011, Clifford was convicted only of theft and released after taking the stand and saying the sex was consensual.
"I'm a man. I'm not going to sit up here and lie to the jury or be somebody else," he testified at the time, describing why he wanted to get the woman's phone number. "My motive was to have sex with that young lady."
Two months after the verdict, he would be charged in two rapes and an attempted rape.
At his trials on the two rape charges last month, Clifford, dressed in dark slacks and short-sleeved dress shirts, took the stand and was poised and straightforward during his testimony. He described himself as a college-educated hair stylist "specializing in dreadlock maintenance" at a Greenmount Avenue salon.
And he detailed his encounters with the women as typical, even clumsy, sexual escapades of a single man. At some points, jurors giggled as he went point-by-point describing his version of courtship and intercourse.
Assistant State's Attorney Katherine Smeltzer is familiar with Clifford; she tried him in the 2011 case, and is prosecuting the current cases. Her frustration was evident at times. She began one question by saying, "Without telling me your made-up story…"
Her co-counsel, Stacie Sawyer, said Clifford had taken 18 months in jail prior to the trials to concoct stories tailored to fit the evidence.
Prosecutors had wanted one jury to hear the cases together, but Clifford's public defender successfully argued that juries should weigh each allegation separately.
Last month, Bernstein dropped three first-degree rape cases against 45-year-old Tyrone Miller. The allegations were similar: Three women independently told police they had been lured with the promise of drugs into alleys and raped. Police said Miller acknowledged he had sex with the women.
But after failing to have the cases heard jointly, prosecutors dropped all charges.
Sean Coleman, a public defender who represented Miller, said prosecutors made the right move in dropping the case.
"I think the case, as they kept looking at it, wasn't as good as they thought it was," Coleman said. "Basically they tried to build a case, and it was more difficult than they thought it would be."
David Gray, a law professor at the University of Maryland, said a string of crimes can sometimes be heard together, but judges have to weigh whether it would prejudice the jury.
"That's a discretionary call that judges have to make all the time as to whether a particular piece of evidence is relevant, and if relevant, the risk of prejudice of allowing that into trial," he said. "Those are very tough calls."
Anne Arundel Deputy State's Attorney Kathleen Rogers said most rape suspects charged in DNA cases now argue the sex was consensual, and prosecutors have to focus on finding additional evidence to bolster the case.
"It's another battle we have to fight, just like we used to have to fight the DNA battles when they'd challenge the science or argue there was [lab] contamination," Rogers said.
In the most recently-concluded case against Clifford, the victim said she was sleeping when a man broke into her apartment by crawling through a window, put a shirt over her head and tied her hands together behind her.
Prosecutors said he threatened her with a knife, saying "I'll gash your face," and took her driver's license.
Clifford described a night out with friends at the strip club Norma Jean's, where he met a woman and exchanged phones numbers. After a few days of communicating over the phone, he said he was invited to her Reservoir Hill apartment where they had sex.
Pressed to identify his phone number from the woman's call records, he said it was a prepaid phone that he couldn't possibly remember. He also didn't know the names of the friends he was with at the club. He became visibly agitated under cross-examination.
Fischer questioned the woman's actions — for example, in her call to 911, she gave a false name and address — and noted that she was nervous on the witness stand.
The allegations were similar to those made by a woman who had been attacked two days earlier. Police didn't connect the cases until the DNA tests were traced to a single suspect.
The victim told police she was sleeping in the living room when she awoke to find a man on top of her with a knife. With her children asleep in the next room, the man tied her hands with a white string and blindfolded her with a shirt. The woman said the man threatened to "cut her face" if she screamed or refused to give him oral sex.
"Do not go to the police," the man told her, she testified. "I know where you live."
On the 911 call, the woman is frantic and screaming over several minutes, saying she feared for her life. "I am not opening my door for anyone but the police," she told a dispatcher on the call.
Clifford said he had called a telephone chatline looking for someone to have sex with, agreed to pay the woman $150 and went to her apartment. Fischer told jurors that neighbors and the woman's children hadn't heard any screaming, and said her story had too many other discrepancies.
The jury acquitted Clifford of all charges except theft in the Greenmount Avenue case, for $60 he admitted taking from her, and he will be sentenced on that charge after the conclusion of the third trial.
The accuser in the Greenmount Avenue case said in an interview that prosecutors did their best, but that the verdicts make her second-guess whether she should have reported the crime in the first place. The Sun generally does not name alleged victims of sexual assault.
"I was starting to slowly but surely get my life back together, and it reopened the wound to see his face and go up against him and not get justice," she said.
Baltimore Sun reporter Ian Duncan contributed to this article.
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